M/S Kishori Lal Sudesh Kumar (P) Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:
1. after dispensing with the condition of pre-deposit of duty amount of rs. 2,99,350/- and an equivalent amount of personal penalty imposed under rule 57i and another personal penalty of rs. 1 lakh imposed under rule 173q, i take up the appeal itself with the consent of both sides inasmuch as commissioner (appeals) has dismissed the appeal filed before him under the provisions of section 35f by observing that the appellants have neither deposited the confirmed dues nor moved any application for dispensing with the condition of pre-deposit of the dues confirmed against them.2. shri j.s. agarwal, ld. advocate appearing for the appellants draws my attention to a stay petition dated 09.05.1999 filed under the provisions of section 35f. the said stay petition shows that the same was sent to the commissioner of central excise (appeals) to new customs house, near igi airport, new delhi under a registered post. ld.advocate clarifies that during the relevant time, the commissioner of central excise (appeals), customs, new delhi was holding additional charge for rajasthan central excise matters and as such the stay petition was sent at the above address. it seems that the said stay petition was not placed before the commissioner (appeals), jaipur when he passed the present impugned order.3. in view of what has been stated above, i set aside the impugned order passed by the commissioner (appeals) and send the matter back to him for consideration of the appellants' stay application afresh. if the same is not available on appellate commissioner's record, the appellant would provide a copy of the same to the commissioner (appeals). the appeal is thus allowed by way of remand. stay application also gets disposed of.

Judgment:
1. After dispensing with the condition of pre-deposit of duty amount of Rs. 2,99,350/- and an equivalent amount of personal penalty imposed under Rule 57I and another personal penalty of Rs. 1 lakh imposed under Rule 173Q, I take up the appeal itself with the consent of both sides inasmuch as Commissioner (Appeals) has dismissed the appeal filed before him under the provisions of Section 35F by observing that the appellants have neither deposited the confirmed dues nor moved any application for dispensing with the condition of pre-deposit of the dues confirmed against them.

2. Shri J.S. Agarwal, ld. Advocate appearing for the appellants draws my attention to a stay petition dated 09.05.1999 filed under the provisions of Section 35F. The said stay petition shows that the same was sent to the Commissioner of Central Excise (Appeals) to New Customs House, near IGI Airport, New Delhi under a registered post. Ld.

Advocate clarifies that during the relevant time, the Commissioner of Central Excise (Appeals), Customs, New Delhi was holding additional charge for Rajasthan Central Excise matters and as such the stay petition was sent at the above address. It seems that the said stay petition was not placed before the Commissioner (Appeals), Jaipur when he passed the present impugned order.

3. In view of what has been stated above, I set aside the impugned order passed by the Commissioner (Appeals) and send the matter back to him for consideration of the appellants' stay application afresh. If the same is not available on appellate Commissioner's record, the appellant would provide a copy of the same to the Commissioner (Appeals). The appeal is thus allowed by way of remand. Stay application also gets disposed of.